APPENDIX 2: GOVERNMENT RESPONSE TO
THE HOUSE OF LORDS CONSTITUTION COMMITTEE'S REPORT, "RELATIONS
BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT"
Introduction
The Government is grateful to the House of Lords
Select Committee on the Constitution and to all those who gave
evidence on a broad, involved and complex series of matters.
The Committee's report examined constitutional relationships
between the judiciary, the executive and Parliament. The inquiry
focused its attentions on enforcement of the Human Rights Act
since 2000, the passage of the Constitutional Reform Act 2005
and the related Concordat developed between the Lord Chief Justice
and the Lord Chancellor, and on the recent creation of the Ministry
of Justice. Conclusions and recommendations have been reached
as to how a changing relationship between the three branches of
government has affected, or might affect, core constitutional
principles such as the rule of law and the independence of the
judiciary.
The Government's response to the report is below.
Summary
The Committee's report separated its conclusions
and recommendations into three parts: Executive and Judiciary;
Parliament and Judiciary; and Judiciary, Media and Public. The
Government's response focuses predominantly on the first of these.
The Government welcomes the Committee's confirmation
of the rule of law's core importance in governing the relationships
between the judiciary, the executive and Parliament. Similarly
the Government commends the emphasis placed by the Committee on
protecting the independence of the judiciary—a principle
fundamental to the just treatment of all members of the community.
The Government also welcomes the Committee's call
for the former Department for Constitutional Affairs' responsibilities
for constitutional affairs to continue to receive the attention
they merit. The Green Paper, The Governance of Britain,
was published in July, outlining the Government's vision and proposals
for constitutional renewal. In exploring these, the Government
is eager to engage the Committee and others on the rights and
responsibilities which shape peoples' relationships with each
other and with the institutions of the state.
The Government has given careful consideration to
the Committee's conclusions and recommendations. Whilst respecting
the thoroughness of the Committee's investigations and the strength
of the reservations it raises, the Government remains convinced
that the creation of the Ministry of Justice affects neither the
Lord Chancellor's statutory obligation to uphold the continued
independence of the judiciary, nor his obligation to provide adequate
funding to ensure the effective and efficient functioning of the
courts.
A more detailed response to the Committee's conclusions
and recommendations can be found below.
Executive and Judiciary
Managing the Tensions
Recommendation 1. The Sweeney case was the first
big test of whether the new relationship between the Lord Chancellor
and the judiciary was working properly, and it is clear that there
was a systemic failure. Ensuring that ministers do not impugn
individual judges, and restraining and reprimanding those who
do, is one of the most important duties of the Lord Chancellor.
In this case, Lord Falconer did not fulfil this duty in a satisfactory
manner. The senior judiciary could also have acted more quickly
to head off the inflammatory and unfair press coverage which followed
the sentencing decision. (Paragraph 49)
1. The Government does not agree with the Committee's
conclusion.
2. Lord Falconer had a personal role in putting
the independence of the judiciary on a statutory footing for the
first time, and he spoke out fully and forcibly in public in defence
of the Judge in the Sweeney case.
3. Throughout the period of the criticism Lord
Falconer kept in close contact with the Lord Chief Justice and
with Sir Igor Judge, The President of the Queen's Bench Division
in the High Court.
4. The current Lord Chancellor is equally committed
to upholding the independence of the judiciary and will intervene
as necessary in future having fully considered the individual
circumstances in which any criticism arises. He will not shirk
his responsibility in reminding Ministers that they need to be
extremely careful not to attack judges.
Recommendation 2. The key to harmonious relations
between the judiciary and the executive is ensuring that ministers
do not violate the independence of the judiciary in the first
place. To this end, we recommend that when the Ministerial Code
is next revised the Prime Minister should insert strongly worded
guidelines setting out the principles governing public comment
by ministers on individual judges. (Paragraph 51)
5. The Government is committed to upholding the
independence of the judiciary. The decision to establish the Supreme
Court and the Judicial Appointments Commission is evidence of
this commitment. The new Ministerial Code, which was published
in July 2007, sets out the principles and practices expected of
Ministers. Section 1 of the Code sets out the following 'The Ministerial
Code should be read against the background of the overarching
duty on Ministers to comply with the law including international
law and treaty obligations and to uphold the administration of
justice and to protect the integrity of public life'.
6. The Government will further consider the Committee's
recommendations when the Code is next updated.
Constitutional Change
Recommendation 3. We agree that the advent of
the Ministry of Justice, whilst obviously a machinery of government
change, has significant constitutional implications. (Paragraph
60)
7. We understand the sentiment behind the recommendation
but would suggest that it was the major changes introduced in
the Constitutional Reform Act 2005, including the end of the role
of the Lord Chancellor as head of the judiciary, which can rightly
be said to have had "significant constitutional implications";
the establishment of the Ministry of Justice less so.
Recommendation 4. We are disappointed that the
Government seem to have learnt little or nothing from the debacle
surrounding the constitutional reforms initiated in 2003. The
creation of the Ministry of Justice clearly has important implications
for the judiciary. The new dispensation created by the Constitutional
Reform Act and the Concordat requires the Government to treat
the judiciary as partners, not merely as subjects of change. By
omitting to consult the judiciary at a sufficiently early stage,
by drawing the parameters of the negotiations too tightly and
by proceeding with the creation of the new Ministry before important
aspects had been resolved, the Government failed to do this. Furthermore,
the subsequent request made by the judiciary for a fundamental
review of the position in the light of the creation of the Ministry
of Justice was in our view a reasonable one to which the Government
should have acceded in a spirit of partnership. (Paragraph 67)
8. I understand that my predecessor as Lord Chancellor
discussed the possibility of a Ministry of Justice with the Lord
Chief Justice as soon as he judged appropriate. On 29 March 2007
the Lord Chief Justice ended a statement on the announcement of
a Ministry of Justice by saying "the senior judges have already
made it plain that structural safeguards must be put in place
to protect the due and independent administration of justice.
These concerns must be addressed. Provided that they are, there
would be no objection in principle to the creation of a new Ministry
with responsibility for both offender management and the court
service." We continue to discuss with the Judiciary the best
way of dealing with the issues they have raised. We have broadened
the parameters for discussion since the Committee's report and
are reviewing a range of options.
Recommendation 5. We believe that the role of
Lord Chancellor is of central importance to the maintenance of
judicial independence and the rule of law. Prime Ministers must
therefore ensure that they continue to appoint to the post candidates
of sufficient status and seniority. (Paragraph 71)
9. The Government agrees.
Recommendation 6. We sincerely hope that constitutional
affairs remain central to the Ministry of Justice's responsibilities
and are not downgraded in importance compared to the other duties
of the Ministry. (Paragraph 74)
10. We share the sentiment; constitutional affairs
have a very high priority.
Recommendation 7. The integrity of the legal system
depends on it being properly funded. We consider it one of the
vital tasks of the Lord Chancellor to ensure that the Courts Service
and Legal Aid budgets uphold that integrity. Whilst it is not
for us to suggest how the courts budget should be agreed in future,
we do urge the Lord Chancellor to ensure that it receives maximum
protection from short-term budgetary pressures upon and within
the new Ministry. Moreover, the budget-setting process must be
transparent and the judiciary must be fully involved, both in
determining the process and in its implementation. (Paragraph
83)
11. The Government agrees that the integrity
of the legal system depends on proper funding.
12. We agree that the budget setting process
for the courts must be transparent and that there should be appropriate
judicial involvement.
Recommendation 8. We are not convinced by the
judiciary's claims that the creation of the Ministry of Justice
lends any additional urgency to their desire for an autonomous
court administration. However, the status of Her Majesty's Courts
Service is of central importance to the administration of justice,
and we urge the Government to engage meaningfully with the judiciary
on this issue in order to find a mutually acceptable way forward.
(Paragraph 87)
13. The Government accepts the recommendation.
We agree that the creation of the Ministry of Justice does not
of itself create a need for an autonomous courts administration.
We are working with the judiciary on this issue with the aim of
finding a mutually acceptable way forward.
Human Rights Act
Ministerial Compatibility Statements and Parliamentary
Scrutiny
Recommendation 9. Where a department has any doubt
about compatibility of a bill with Convention rights, ministers
should seek the involvement of the Law Officers at a formative
stage of policy-making and legislative drafting. (Paragraph 90)
14. It is already the practice of Government
to consult the Law Officers formally where legislative proposals
may be incompatible with the Convention rights, and particularly
where there is any possibility that a statement under section
19(1)(b) of the Human Rights Act 1998 may need to be made in respect
of any Bill.
Greater Guidance from the Executive to the Courts?
Recommendation 10. Whilst we have sympathy with
the difficulties outlined by Charles Clarke in relation to the
Human Rights Act, his call for meetings between the Law Lords
and the Home Secretary risks an unacceptable breach of the principle
of judicial independence. It is essential that the Law Lords,
as the court of last resort, should not even be perceived to have
prejudged an issue as a result of communications with the executive.
(Paragraph 97)
15. The Government agrees with the Committee's
conclusion.
Should there be a System of Abstract Review?
Recommendation 11. Whilst a system of "abstract
review" of legislation might seem attractive in some respects,
we believe that it could compromise the impartiality of the senior
judiciary and that it would not in any case prevent successful
challenges under the Human Rights Act to ministerial exercise
of statutory powers. (Paragraph 106)
16. The Government agrees. Even when a declaration
of incompatibility is sought under the Human Rights Act, the Government
believes that it is important that the courts are presented with
a real and substantial factual situation in the light of which
to consider the compatibility of the legislation.
Review of Bills by a Committee of Distinguished
Lawyers
Recommendation 12. We do not believe that a committee
of distinguished lawyers tasked with scrutinising legislation
for compatibility with Convention rights is desirable at this
time. If, however, at some future time the composition of the
House of Lords changes, this is an idea that may well merit further
consideration. (Paragraph 108)
17. The Government agrees.
Advisory Declarations
Recommendation 13. We recommend that the Government
and the judiciary give further consideration to how advisory declarations
might be used to provide guidance on questions relating to Convention
rights. (Paragraph 111)
18. The Government is not convinced of the utility
of this idea. As previously noted, the Government attaches considerable
importance to the grounding of cases before the courts in real
and substantial factual situations: this assists the courts in
considering the compatibility of the law with the Convention rights
by enabling them to consider not only the strict words of any
given statute, but also the legal and practical framework and
context in which it is given effect. It is significant to note
that even the European Court of Human Rights would not consider
the compatibility of a State's legal framework in the absence
of an actual complaint that the Convention rights of a person
or organisation (within the scope of Article 34 of the Convention)
have been or will be breached. It is already possible to bring
a specific issue of genuine practical importance before the courts
by means of so-called "friendly" litigation, and the
Government would be wary of introducing any greater degree of
abstraction than this into the judicial process.
Parliament and Judiciary
Laying Written Representations before Parliament
Recommendation 14. We recommend that any written
representations received from the Lord Chief Justice under section
5 of the Constitutional Reform Act 2005 should be published in
Hansard; that the business managers should find time for the issue
to be debated in the House at the earliest possible opportunity;
and that the Government should respond to such representations
in good time before either House has finished considering the
bill or initiative in question. Further, this Committee will endeavour
to scrutinise any such representations in time to inform deliberations
in the House. (Paragraph 119)
19. The Government will endeavour to respond
in good time to such representations, should they be made.
The Question of Accountability
The Role of Select Committees
Recommendation 15. We believe that select committees
can play a central part in enabling the role and proper concerns
of the judiciary to be better understood by the public at large,
and in helping the judiciary to remain accountable to the people
via their representatives in Parliament. Not only should senior
judges be questioned on the administration of the justice system,
they might also be encouraged to discuss their views on key legal
issues in the cause of transparency and better understanding of
such issues amongst both parliamentarians and the public. However,
under no circumstances must committees ask judges to comment on
the pros and cons of individual judgements. (Paragraph 126)
20. The Government will pay close attention to
any proposals in this area ,and consult the Lord Chief Justice
and his colleagues about it.
A Parliamentary Committee on the Judiciary
Recommendation 16. We are not currently convinced
of the need for a joint committee on the judiciary, but we shall
keep the situation under review, not least in evaluating our Committee's
effectiveness in providing the necessary oversight and contact.
The Constitutional Affairs Select Committee in the House of Commons
also has an important role to play. (Paragraph 129)
21. The Government will pay close attention to
any proposals in this area.
Post Legislative Scrutiny
Recommendation 17. We repeat our earlier conclusion
that post-legislative scrutiny is highly desirable and should
be undertaken far more generally. This would boost the level of
constructive dialogue between Parliament and the courts. (Paragraph
130)
22. The Government is currently giving careful
consideration to its response to the Law Commission's report on
post-legislative scrutiny. This response is being informed by
a number of factors. These include, firstly, the Government's
recognition of the potential benefits of more post-legislative
scrutiny than currently takes place. Secondly that, as the Law
Commission noted, post-legislative scrutiny can be narrowly or
widely interpreted, ranging from simple examination of whether
there have been drafting difficulties or whether specific provisions
have not been brought into effect, to a much wider examination
of how the effects of the Act are achieving its objectives. Thirdly
that, as the Law Commission observed, and the Government broadly
agrees, there cannot be a 'one-size-fits-all' approach to post-legislative
scrutiny, because of the wide variety of legislation.
23. In relation to parliamentary post-legislative
scrutiny, it is important to note that any commentary by Parliament
on judicial interpretation is not binding on the courts, and there
is no obligation on the courts to consider a select committee's
views in relation to interpretation. This reflects the fact that
interpretation of legislation is a function of the courts and
the courts alone. The Government considers this to be essential
for the proper maintenance of the separation of powers. This does
not of course affect Parliament's ability to legislate specifically
to correct what it considers is a mistaken development in judicial
interpretation of the law and to restate its intention.
Confirmation Hearings
Recommendation 18. We urge the Government to clarify
their position on the introduction of appointment hearings for
judges at the earliest opportunity, since this would be an innovation
with very profound implications for the independence of the judiciary
and the new judicial appointments system. (Paragraph 135)
24. The Governance of Britain Green Paper
said that: "The Government is willing to look at the future
of its role in judicial appointments: to consider going further
than the present arrangement, including conceivably a role for
Parliament itself, after consultation with the judiciary, Parliament
and the public, if it is felt there is a need."
25. We will shortly be consulting on judicial
appointments, including on whether the role of the executive should
be altered. Any role for Parliament needs to be considered very
carefully and there are a range of options that could be considered.
As the Lord Chancellor has said, US-style confirmation hearings
may be appropriate for the United States but he does not believe
they would work for us.
An Annual Report on the Judiciary
Recommendation 19. We welcome the Judicial Executive
Board's decision that the Lord Chief Justice should lay an annual
report before Parliament, an innovation which this Committee had
discussed with the Lord Chief Justice and other senior judges
in the course of our deliberations. We suggest that the annual
report should be formally laid under section 5 of the Constitutional
Reform Act. We further suggest that the report might encompass
administrative issues and—where appropriate—areas
of concern about the justice system, provided that there is no
discussion of individual cases. We believe that the report will
provide a useful opportunity for both Houses of Parliament to
debate these matters on an annual basis, and for the Lord Chief
Justice to engage effectively with parliamentarians and the public.
(Paragraph 139)
26. The Government is happy to discuss this with
the Lord Chief Justice.
Judiciary, Media and Public
Public Perceptions
Recommendation 20. We believe that the media,
especially the popular tabloid press, all too often indulge in
distorted and irresponsible coverage of the judiciary, treating
judges as "fair game". A responsible press should show
greater restraint and desist from blaming judges for their interpretation
of legislation which has been promulgated by politicians. If the
media object to a judgment or sentencing decision, we suggest
they focus their efforts on persuading the Government to rectify
the legal and policy framework. In order to ensure more responsible
reporting, we recommend that the Editors' Code of Practice, which
is enforced by the Press Complaints Commission, be regularly updated
to reflect these principles. (Paragraph 146)
27. We agree, and have passed this recommendation
to the Press Complaints Commission and the Secretary of State
for Culture, Media and Sport.
The Role of Individual Judges
Recommendation 21. Whilst judges should never
be asked to justify their decisions outside the courtroom, it
is desirable for them to communicate with the public and the media
on appropriate issues. We therefore strongly encourage the occasional
use of media releases alongside judgements, as for example in
the Charlotte Wyatt case. Further, we cannot see any reason why
judges should not co-operate with the media on features about
their activities outside the courtroom, if they so wish. However,
we are strongly of the opinion that whatever the media pressure,
judges should not give off-the-record briefings. (Paragraph 155)
28. This is a recommendation for the Lord Chief
Justice and his colleagues.
The Role of the Lord Chief Justice
Recommendation 22. It is wholly within the discretion
of the Lord Chief Justice to determine how he can most effectively
communicate with the media and the public. However, we suggest
that he may from time to time need to re-appraise his strategy
in light of the new constitutional relationship between the judiciary,
the executive and Parliament. We believe that, in these days of
greater separation of powers, it is highly desirable for him to
ensure that the views of the judiciary are effectively conveyed
to the public. (Paragraph 160)
29. This is a recommendation for the Lord Chief
Justice and his colleagues.
The Role of the Judicial Communications Office
Recommendation 23. We conclude that the judges
should consider making the Judicial Communications Office more
active and assertive in its dealings with the media in order to
represent the judiciary effectively. We suggest that consideration
be given to appointing one or more spokesmen with appropriate
qualifications and legal experience who would be permitted to
speak to the media with the aim of securing coverage which accurately
reflects the judgment or sentencing decision. However, under no
circumstances should such spokesmen seek to justify decisions
as opposed to explaining them. (Paragraph 171)
30. This is a recommendation for the Lord Chief
Justice and his colleagues.
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